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Adults with Incapacity (Scotland) Act 2000: General Information

DescriptionThis leaflet gives information on provisions under the Adults with Incapacity (Scotland) Act 2000 to safeguard and make decisions for adults who lack mental capacity to make some or all decisions for themselves
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Official Print Publication Date
Website Publication DateMarch 07, 2006

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    Adults with Incapacity (Scotland) Act 2000

    Would you like to arrange for your affairs to be properly managed in the future, if your mental capacity should deteriorate?

    Are you a relative or carer of a person aged 16 or over who is unable to take decisions on important matters for themselves?

    Do you know someone in that position, for example a neighbour or friend?

    Are you a voluntary or statutory worker dealing with adults who have lost the capacity to take some decisions, or who never had it?

    This leaflet gives information on an important piece of new legislation that came into force on 2 April 2001.

    Please read it. This legislation may be relevant to you.

    The Act generally

    The Act changes the system for safeguarding the welfare, and managing the finances and property, of adults (aged 16 or over) who lack the capacity to take some or all decisions for themselves because of mental disorder or inability to communicate by any means. It allows other people to make decisions on behalf of these adults, subject to safeguards.

    General principles

    All decisions made on behalf of an adult with impaired capacity must:

    • benefit the adult
    • take account of the adult's past and present wishes
    • restrict the adult's freedom as little as possible while still achieving the desired benefit
    • encourage the adult to use existing skills or develop new skills
    • take account of the views of others with an interest in the adult's welfare.

    Under the Act a number of different agencies are involved in supervising those who take decisions on behalf of the adult.

    • the Public Guardian has a supervisory role and keeps registers of attorneys, people who can access an adult's funds, guardians and intervention orders
    • local authorities look after the welfare of adults who lack capacity
    • the Mental Welfare Commission protects the interests of adults who lack capacity as a result of mental disorder

    Under the Act, the main ways that other people can make decisions for an adult with impaired capacity are:

    Power of Attorney

    Individuals can arrange for their welfare to be safeguarded and their affairs to be properly managed in future, should their capacity deteriorate. They can do this by giving another person (who could be a relative, carer, professional person or trusted friend) power of attorney to look after some or all of their property and financial affairs and/or to make specified decisions about their personal welfare, including medical treatment.

    All continuing and welfare powers of attorney granted from 2 April 2001 will need to be registered with the Public Guardian to be effective.

    Access to the adult's funds

    Individuals (normally relatives or carers) can apply to the Public Guardian to gain access to the funds of an adult incapable of managing those funds. This applies to funds held in, for example, a bank or building society account in the sole name of the adult.

    The Act also includes provisions to allow access to a joint account to continue where one account holder has become incapable of managing the funds.

    Funds of residents in care establishments

    Authorised care establishments can manage a limited amount of the funds and property of residents who are unable to do this themselves.

    Medical treatment and research

    The Act allows treatment to be given to safeguard or promote the physical or mental health of an adult who is unable to consent. Special provisions apply where others such as attorneys have been appointed under the Act with powers relating to medical treatment.

    Where there is disagreement a second medical opinion can be sought. Cases can also be referred to the Court of Session in certain circumstances. The Act also permits research involving an adult incapable of giving consent but only under strict guidelines.

    Intervention and guardianship orders

    Individuals can apply to their local Sheriff Court for:

    • an intervention order where a one-off decision or short-term help is required (for example selling property or signing a document)
    • a guardianship order, which may be more appropriate where the continuous management of affairs or the safeguarding of welfare is required.

    Local authorities or any person claiming an interest in the adult's affairs may make applications for intervention and guardianship orders.

    Codes of practice and regulations

    The codes of practice are for those people and organisations that have functions given to them by the Act. The codes will provide guidance on the legislation itself and offer further practical information.

    Copies available at the following address:

    Civil Law Division
    Floor 2 West (Rear)
    Justice Department
    Scottish Executive
    St Andrew's House
    Regent Road
    Edinburgh
    EH1 3DG

    Tel: 0131 244 2193 or website: www.scotland.gov.uk/justice/incapacity

    Where can I get further information?

    www.scotland.gov.uk/justice/incapacity / or you may wish to contact

    The Office of the Public Guardian

    Hadrian House
    Callander Business Park
    Falkirk
    FK1 1XR

    Tel: 01324 678300

    The Social Work Service of your local authority

    - see local telephone directory for address

    The Mental Welfare Commission for Scotland

    Argyle House
    3 Lady Lawson Street
    Edinburgh
    EH3 9SH

    Tel: 0131 222 6111

    Citizens Advice Bureaux

    - see local telephone directory for address

    The Law Society of Scotland

    26 Drumsheugh Gardens
    Edinburgh
    EH3 7YR

    Tel: 0131 226 7411

    ENABLE

    6th Floor
    7 Buchanan Street
    Glasgow
    G1 3HL

    Tel 0141 226 4541

    ASCS - Advice Service Capability Scotland

    11 Ellersly Road
    Edinburgh
    EH12 6HY

    Tel 0131 313 5510
    Textphone/Minicom 0131 346 2529

    Alzheimer Scotland - Action on Dementia

    22 Drumsheugh Gardens
    Edinburgh
    EH3 7RN

    Tel 0131 243 1453

    Dementia Helpline

    Freephone 0808 808 3000

    Age Concern Scotland

    160 Causewayside
    Vanguard Way
    Edinburgh
    EH9 1PR

    Freecall Helpline 0800 00 99 66

    This leaflet is available, free of charge, also in Braille, audio tape, large print format, Urdu, Punjabi, Bengali, Arabic, Chinese and Gaelic by phoning 0131 244 2193.